Citation Nr: A25035169 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240603-518255 DATE: April 16, 2025 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a back disability is denied. Entitlement to an initial rating in excess of 0 percent for hypertension is denied. Entitlement to service connection for joint issues is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence persuasively favors a finding that the Veteran's bilateral hearing loss was not caused by or incurred in service. 2. The evidence persuasively favors a finding that the Veteran's left hip condition was not caused by or incurred in service. 3. The evidence persuasively favors a finding that the Veteran's right hip condition was not caused by or incurred in service. 4. The evidence persuasively favors a finding that the Veteran's claimed joint issues were not caused by or incurred in service. 5. The evidence persuasively favors a finding that the Veteran's back disability, which was noted at the time of entry to service, was not aggravated by or during the course of service. 6. The evidence persuasively favors a finding that the Veteran's diastolic blood pressure has not predominantly been 100 or greater, nor has his systolic blood pressure predominantly been 160 or greater. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38?U.S.C. §§?1110, 5107(b); 38?C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a left hip condition have not been met. 38?U.S.C. §§?1110, 5107(b); 38?C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a right hip condition have not been met. 38?U.S.C. §§?1110, 5107(b); 38?C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for joint issues have not been met. 38?U.S.C. §§?1110, 5107(b); 38?C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for a back disability have not been met. 38?U.S.C. §§?1110, 1153, 5107(b); 38?C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.310. 6. The criteria for entitlement to an initial rating in excess of 0 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to January 1970. This case comes on appeal of May and June 2023 rating decisions by the agency of original jurisdiction (AOJ). In June 2024, the Veteran submitted a VA Form 10182 to appeal those decisions to the Board. In doing so, the Veteran elected to have his appeal adjudicated under the Direct Review docket. Accordingly, the Board may only consider evidence that was of record at the times of the May and June 2023 rating decisions as it pertains to the issues decided in those decision. The Board may consider argument raised at any time. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including degenerative arthritis and organic diseases of the nervous system, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Sensorineural hearing loss may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for bilateral hearing loss The Veteran has alleged that he has a current bilateral hearing loss disability that is attributable to in-service noise exposure to include mortar attacks during service in Vietnam. Available medical records indicate that the Veteran's hearing loss developed long after service. Indeed, in February 2019 treatment records, the Veteran reported that hearing loss had begun between five and seven years prior. The Veteran underwent a February 2023 VA hearing loss examination which demonstrated a current diagnosis of bilateral hearing loss for VA purposes. However, the examiner opined it was less likely than not that the Veteran's hearing loss was caused by or incurred in service. By way of rationale, the examiner explained that the Veteran's service treatment record did not show hearing loss or a relevant increase in hearing thresholds between entry and separation. Thus, there was no evidence that hearing loss had its onset during service. The examiner then explained that the Institute of Medicine Report (IOM), Noise and Military Service, September 2005, concluded that, based on current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. The examiner noted that the IOM also stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. In other words, according to the examiner, current medical and scientific findings do not support the presence of delayed-onset hearing loss. Therefore, since there was no evidence of the presence of hearing loss, or the presence of significant threshold shifts in hearing acuity, during service, there was no basis for finding that the current hearing loss disability was caused by service. Here, the Board notes that the United States Court of Appeals for Veterans Claims (Court) ruled in McCray v. Wilkie, 31 Vet. App. 243 (2019), that when determining the adequacy and probative value of a medical opinion, the Board must consider whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects. The Court explained that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. The Court specifically identified the IOM study as containing apparent qualifiers or contradictions. In this case, as was discussed above, although the report only stated that there was insufficient basis to conclude that hearing loss would develop long-term after noise exposure, the report did not identify any reasonable basis that delayed hearing loss effects occur. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term. In citing to the IOM report, the February 2023 examiner relied on medical literature that indicated further testing could be done on the matter, but that the available evidence was against a finding of delayed onset hearing loss. The absence of definitive scientific evidence does not mean that a delayed onset of hearing loss following acoustic trauma is probable, or even approximately as likely as not. Thus, the IOM report is not necessarily given overwhelming probative value, but is still given significant probative value. The report is still an informed medical conclusion based on data about hearing loss and the Board finds that it is of significant enough probative value to be instructive to the examiner. In contrast, there is no competent evidence to support a finding that the Veteran's current hearing loss disability was caused by or incurred in service. The Board is sympathetic to the Veteran's testimony regarding his in-service noise exposure and his belief that this resulted in his current hearing loss. However, as a layperson, the Veteran is not competent to opine on the etiology of hearing loss, as doing so requires medical expertise. To date, there is no competent medical opinion linking the current hearing loss disability to service. Similarly, as was noted by the February 2019 VA treatment record, the Veteran has not claimed he noticed hearing loss starting during service, nor did he notice it manifesting to a compensable degree within one year of service. As a result, the evidence persuasively favors a finding that bilateral hearing loss was not caused by or incurred in service, to include presumptively as a chronic disease. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). 2. Entitlement to service connection for a left hip condition 3. Entitlement to service connection for a right hip condition VA and private post-service treatment records demonstrate that the Veteran has had total replacements of the left and right hips, secondary to degenerative arthritis. At issue is whether these left and right hip disabilities were caused by or incurred in service. Service treatment records do not contain any treatment or complaints for any left or right hip problems. Likewise, there are no issues related to the hips documented on the Veteran's separation examination. August 2016 VA treatment records document that the Veteran underwent replacement of the left hip approximately two years prior to that date; right hip replacement occurred years later. In submitting his claim, the Veteran attributed the general conditions of his service to the entirety of his claimed conditions. However, there is nothing in that brief testimony to indicate a causal link between hip replacements service and hip replacements taking place several decades later. The Veteran has provided no other testimony to explain the relationship between his current hip disabilities and service, nor has he provided medical evidence to establish such a nexus. As a result, the evidence persuasively favors a finding that the Veteran's left and right hip disabilities were not caused by or incurred in service. The Board notes that the Veteran has not been afforded VA examinations regarding these claims. However, in the absence of any tangible in-service injury or event that would serve as the basis for these disabilities, the evidence has not met even the low threshold of criteria necessary to trigger VA's duty to assist by providing an examination. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection for left and right hip disabilities is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). 4. Entitlement to service connection for joint issues On his December 2022 claim form, the Veteran listed the issue of "hip and joint issues." There has been no indication of the specific joint issues for which the Veteran seeks service connection. However, post-service treatment records note evidence of mild arthritis in the knees, feet, elbows and right shoulder. There is no indication, however, as to how any of these current disabilities are causally linked to service. As was noted above, the Veteran generally attributed all of his claimed conditions to the conditions of service. Nevertheless, service treatment records do not show any complaints of or treatment for conditions related to these joints. Service treatment records do document a left shoulder injury, but there is no evidence in the record of a current left shoulder disability. The Veteran has not testified to continuity of symptoms since service and x-rays diagnosed arthritis in the aforementioned joints several decades after separation. As a result, the evidence persuasively favors a finding that the Veteran's claimed joint issues were not caused by or incurred in service. The Board notes that the Veteran has not been afforded VA examinations regarding these claims. However, in the absence of any tangible in-service injury or event that would serve as the basis for these disabilities, the evidence has not met even the low threshold of criteria necessary to trigger VA's duty to assist by providing an examination. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection for joint issues is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). 5. Entitlement to service connection for a back disability The record demonstrates the Veteran has been diagnosed with degenerative joint disease of the lumbar spine following back surgeries in 2011 and 2012. Service treatment records show that the Veteran broke his back prior to service. The injury was noted in the examiner's report on the Veteran's enlistment examination. A Veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To be "noted" within the meaning of the statute and regulation, the condition must be recorded in the entrance examination report. Id. Thus, in this case, the Veteran is not presumed sound upon entry with regard to a back disability. However, service connection may still be awarded on the basis of aggravation. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Here, the Veteran's service treatment records demonstrate no evidence of any increase in severity of a back disability during service. Indeed, there is no evidence of any complaints of back problems during the Veteran's service. The Veteran underwent a VA examination in February 2023. At that time, the examiner identified no evidence of aggravation during service. The examiner further noted that the Veteran's degenerative joint disease, status post lumbar surgery was an expected finding in light of the Veteran's condition and was unrelated to service. Based on this, the evidence persuasively favors a finding that the Veteran's pre-existing back disability was not aggravated during or as a result of service. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection for a back disability is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). Increased Ratings 6. Entitlement to an initial rating in excess of 0 percent for hypertension In the May 2023 rating decision on appeal, the AOJ granted entitlement to service connection for hypertension with an initial rating of 0 percent. In his June 2024 VA Form 10182, the Veteran stated his disagreement with the assigned disability evaluation. Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The Veteran's hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, to warrant a 10 percent rating, hypertension must manifest in diastolic pressure that is predominantly 100 or more, or systolic pressure predominantly 160 or more. Alternatively, a 10 percent rating is warranted as a minimum evaluation for an individual with a history of diastolic pressure that was predominantly 100 or more who now requires continuous medication for control of hypertension. A 20 percent rating is warranted for hypertension that manifests in diastolic pressure that is predominantly 110 or more, or systolic pressure that is predominantly 200 or more. A 40 percent rating is warranted for hypertension that manifests in diastolic pressure that is predominantly 120 or more. A 60 percent rating is warranted for hypertension that manifests in diastolic pressure that is predominantly 130 or more. The Board notes that "predominantly" is not defined in the Rating Schedule, however the Board understands it to have its ordinary meaning of "for the most part," or "mainly." See Merriam-Webster's Collegiate Dictionary, 978 (11th ed. 2012). The Veteran's treatment records demonstrate his ongoing use of hydrochlorothiazide for the treatment of high blood pressure. However, there is no evidence to demonstrate that the Veteran's hypertension has ever manifested in a diastolic pressure of 100 or greater or a systolic pressure that was predominantly 160 or greater. Indeed, available treatment records consistently show the Veteran's blood pressure measurements below these levels. The Veteran underwent a VA hypertension examination in February 2023, at which time his blood pressure measurements were 135/78, 133/84, and 137/80. As a result, despite the fact that the Veteran does take medication to control his blood pressure, since there is no evidence of diastolic pressure that has ever been greater than 100, the Veteran's hypertension still does not meet the requirements for a rating of 10 percent under Diagnostic Code 7101. Likewise, since systolic pressure has not been predominantly 160 or higher, the condition does not meet the criteria for a rating of 10 percent under that metric either. As the rating criteria for Diagnostic Code 7101 are successive, the condition does not meet the criteria for a rating in excess of 10 percent. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an increased rating for the Veteran's hypertension disability is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. Remand is necessary to correct a pre-decisional duty to assist error. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has a well-established diagnosis of sleep apnea. The Veteran has also indicated that the disability could be the presumed exposure to herbicide agents during his service in Vietnam. Pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), the Veteran is a covered Veteran who is presumed to have been exposed to the substances, chemicals, and airborne hazards in connection with such service. 38 U.S.C. §§ 1119, 1120. The PACT Act provides that, when a Veteran submits a claim for compensation with evidence of a disability and evidence of a toxic exposure risk activity (TERA) during active military service, and such evidence is not sufficient to establish service connection for the disability, VA shall provide the Veteran with a medical examination under 38 U.S.C. § 5103A(d). VA shall also obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. See 38 U.S.C. § 1168. The PACT Act further dictates that, when providing a medical opinion under this section of the law, the health care provider shall consider the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. Id. VA has determined that the Veteran's service entailed a TERA. Thus, on remand, the VA examination should consider whether there is a causal relationship between the Veteran's TERA and sleep apnea. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA sleep apnea examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. With respect to the Veteran's diagnosed sleep apnea, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the disability had onset in, or is otherwise related to service. Further, the examiner should address whether the Veteran's sleep apnea is at least as likely as not caused by his conceded in-service toxic exposures, to include the synergistic effect of all conceded toxic exposures. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.